19

- 489 Magassouba v. Garland BIA A 078 430 196 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**


## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER**  **FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED**  **AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT**  = **S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX**  **OR AN ELECTR ONIC DATABASE (WITH THE NOTATION**  **“ SUMMARY ORDER**  **” ). A**  **PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Mar**  **shall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **4 t**  **h da**  **y of M**  **a y**  **, two thousand twenty** 

**- one** 
**.** 4 5 **PRESENT:** 6 **BARRINGTON D. PARKER ,**  7 **SUSAN L. CARNEY ,**  8 **WILLIAM J. NARDINI ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **MOUSTAPHA MAGASSOUBA ,**  **AKA** 13 **MOUSTAPHA MAGESSOUBA, AKA DY IGBE**  14 **SANOJANA ,**  15 **Petitioner ,**  16 17
**v. 19** 

**- 489**  18 **NAC** 19 **MERRICK B. GARLAND ,**  **UNITED** 20 **STATES ATTORNEY GENERAL**  **,** ***** 21 **Respondent**

**.** 22

**_____________________________________** 23 24 **FOR PETITIONER :**  Moustapha Magassouba , pro se, New 25 York , NY

. 26 27

* The Clerk of the Court is respectfully directed to amend the caption as set forth.2 **FOR RESPONDENT:** Joseph H. Hunt , Acting Assistant 1 Attorney General ; Emily Anne 2 Radford , Assistant Director; Sarah 3 K. Pergolizzi , Trial Attorney, 4 Office of Immigration Litigation, 5 United States Department of 6 Justice, Washington, D C. 7
UPON DUE CONSIDERATION of this petition for review of a 8
Board of Immigration Appeals (“BIA”) decision, it is hereby 9

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 10

is DENIED

. 11

Petitioner Moustapha Magasso uba , a native and citizen of 12

Guinea , seeks review of a February 4, 2019 , decision of the 13

BIA reissuing its August 2018 den ial of his motions to reopen 14

and reconsider , and again denying reconsideration

. In re 15
Moustapha Magassouba , No. A 078 430 196 (B.I.A. Feb. 4, 2019 )

. 16
We assume the parties’ familiarity with the underlying facts 17
and procedural history in this case. 18
The petition for review is timely only as to the BIA’s 19
denial of reopening and reconsider ation , and we do not reach 20
Magassouba’s challenges to the underlying removal order and 21

denial of relief

. S ee Ke Zhen Zhao v. U.S. Dep’t of Justice, 22

265 F.3d 83, 89

– 90 (2d Cir. 2001 ). We review the BIA’s denial 23
of a motion to reopen or reconsider for abuse of discretion 24

and review factual findings regarding country conditions for 253 substantial evidence. See Jian Hui Shao v. Mukasey , 546 F.3d 1

138, 168

- 69 (2d Cir. 2008) (motion to reopen and country 2
conditions findings); Jin Ming Liu v. Gonzales , 439 F.3d 109, 3

111 (2d Cir. 2006) (motion to reconsider). 4
**Reopening** 5

We find no abuse of discretion. A motion to reopen must 6

be filed within 90 days of the final removal order and must 7
be based on new evidence that was not previously available

. 8

8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c). Magassouba’s 9
2018 motion was untimely because his removal order was final 10

in 2011. Although the time l imitation for filing a motion 11
to reopen does not apply if reopening is sought to apply for 12
asylum and the motion “is based on changed country conditions 13
arising in the country of nationality or the country to which 14
removal has been ordered, if such evidenc e is material and 15

was not available and would not have been discovered or 16
presented at the previous proceeding , ” 8 U.S.C. 17

§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii) , 18
Magassouba failed to establish any material change in Guinea 19

because h e did not submit any evidence of conditions in Guinea 20

either at the time of his motion or at the time of his 214 underlying removal proceedings

. See In re S

- Y

- G

- , 24 I. & N. 1

Dec. 247, 253 (B

. I

. A

. 2007) ( “In determining whether evidence 2
accompanying a motion to reopen demonstrates a material 3
change in country conditions that would justify reopening, 4
[the agency] compare[s] the evidence of country conditions 5

submitted with the motion to those that existed at the time 6
of the merits hearing below.” ). Absent an exception to the 7

time limitatio n , the only basis for reopening was an exercise 8
of the BIA’s authority to reopen sua sponte , which is an 9
“entirely discretionary” determination that we lack 10
jurisdiction to review

. Ali v. Gonzales , 448 F .3d 515, 518 11

(2d Cir. 2006)

. 12

**Reconsideration** 13

T he BIA also did not abuse its discretion in denying 14

reconsideration . A motion to reconsider “must be filed 15

within 3 0 days of the date of entry of a final administrative 16

order of removal. ” 8 U.S.C. § 1229 a(c)(6)(B) ; 8 C.F.R. 17

§ 1003.2(c)(2). Motions to reconsider must “specify[] the 18
errors of fact or law in the prior Board decision.” 8 C.F.R. 19

§ 1003.2(b)(1). 20
Similar to his request to reopen, Magassouba’s 2018 215 motion to reconsider was untimely because his removal order 1

was final in 201 1

. See 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. 2

§ 1003.2(b)(2). To the extent Magassouba ’s motion to reissue 3
also requested reconsideration of the denial of reopening, 4

his arguments did not re late to the BIA’s determination that 5

his motion to reopen w as untimely and he did not identify any 6
grounds to excuse that prior untimely filing. H e merely 7
reiterated previous arguments that the BIA had rejected in 8
the context of reopening , and therefore h e did not identify 9
an error of law or fact as is required for reconsideration. 10

See 8 U.S.C. § 1229a(c)(6)(B) ; Jin Ming Liu , 439 F.3d at 111 11

( “The BIA does not abuse its discretion by denying a motion 12
to reconsider where the motion repeats arguments that the BIA 13
has previously rejected.”). 14
For the foregoing reasons, the petition for review is 15

DENIED

. All pending motions and applications are DENIED and 16

stays VACATED. 17

FOR THE COURT: 18 Catherine O ’ Hagan Wolfe , 19 Clerk of Court 20